This paper argues for a conception of the natural rights of non-human animals grounded in Kant’s explanation of the foundation of human rights. The rights in question are rights that are in the first instance held against humanity collectively speaking—against our species conceived as an organized body capable of collective action. The argument proceeds by first developing a similar case for the right of every human individual who is in need of aid to get it, and then showing why the situation of animals is similar. I first review some of the reasons why people are resistant to the idea that animals might have rights. I then explain Kant’s conception of natural rights. I challenge the idea that duties of aid and duties of kindness to animals fit the traditional category of “imperfect duties” and argue that they are instead cases of “imperfect right.” I explain how you can hold a right against a group, and why it is legitimate to conceive of humanity as such a group. I then argue that Kant’s account of the foundation of property rights is grounded in a conception of the common possession of the Earth that grounds a right to aid and the rights of animals to be treated in ways that are consistent with their good. Finally, I return to the objections to the idea that animals have rights and offer some responses to them.Korsgaard continues
Some people use the term “animal rights” to refer simply to the moral claims of non-human animals, whatever those might be. In this paper I use the term “rights” in its more specific sense, to designate a particular kind of moral claim. Roughly speaking, a “right” is a claim that may be, and ought to be, legally enforced. The enforcement of rights can be claimed as a matter of law and justice: it is not merely a matter of charity.
Most people think that non-human animals (hereinafter “animals”) have what philosophers call “moral standing.” That is, they believe that animals are the appropriate objects of moral concern, and they think that we have moral duties to treat animals in certain ways that are good for them for the sake of the animals themselves, and not just, say, for the sake of their owners or of keeping them profitable. Admittedly, many people think that these duties are of a rather weak kind: they think we ought to treat animals “as humanely as possible” given the ways that we use them. For example, according to some animal welfare laws, animals used in scientific research in ways that might be painful to them must be given anesthetics if it does not interfere with the purpose of the research. The duty to spare the animal pain is not taken to be a reason against doing the research. But most people admit at least a duty to prevent animals from experiencing “unnecessary” pain.
Most people also think that at least some of our duties to animals should be enforced by legal sanctions. That is why there are animal welfare protection laws on the books. Yet, for reasons I will describe below, many people think it is absurd to suppose that animals either do or should have rights, in the specific sense of rights I am concerned with here. This combination of views may look contradictory on the surface, but in fact, animal welfare laws do not usually grant the animals themselves any rights, at least if we think of a right as something that the right-holder can claim. For example, at least in the United States as things stand now, the legal representatives of animals cannot sue for the enforcement of animal welfare laws in the name of the animals themselves. Only human beings who can claim to have some interest of their own in the enforcement of animal welfare laws can sue to have them enforced (Sunstein 2004).
In this paper I argue that animals do have rights, but that these rights have a distinctive structure. I say that animals “do have rights” rather than merely that they “should have rights,” because the argument I will give is based on Immanuel Kant’s conception of rights, and is therefore in the natural rights tradition, according to which rights are grounded in morality, and can in a sense exist prior to, or independently of, any positive laws that are actually on the books. I will discuss the idea of a natural right further in section three. The distinctive structure of animals’ rights is this: Many of our rights are held against individuals, at least in the first instance: either against every individual in a group, as one’s civil rights are, or against some specific individuals, as when two people are bound by a contract or a promise. Animals, I argue, have rights that are in the first instance rights against humanity collectively speaking, humanity as a group, to be treated by people in ways that are consistent with what is good for them. The corresponding duties of individuals are derived from the duties we have collectively. I believe that as individuals we also have duties to treat animals well, and in particular to avoid cruelty. But I think that the duties of humanity collectively speaking are in a distinctive way the ground of rights that ought to have legal force.
I will try to demonstrate that there are such rights—rights against humanity collectively—by arguing for another important case of this kind of right. I believe that every human being who is in need of aid in order to survive in a reasonable condition has a right with exactly this structure—a right against humanity, collectively, to ensure the provision of that aid. Both that particular human right and animal rights are traceable to the same fact, namely the fact that humanity, collectively speaking, is in a position to exercise extensive control over the fate of all of the inhabitants of the planet with whom we interact.'For Hierarchy in Animal Ethics' by Shelly Kagan in the same journal states
In my forthcoming book, How to Count Animals, More or Less (based on my 2016 Uehiro Lectures in Practical Ethics), I argue for a hierarchical approach to animal ethics according to which animals have moral standing but nonetheless have a lower moral status than people have. This essay is an overview of that book, drawing primarily from selections from its beginning and end, aiming both to give a feel for the overall project and to indicate the general shape of the hierarchical position that I defend there. In this essay, I contrast the hierarchical approach with its most important rival (which holds that people and animals have the very same moral status), sketch the main idea behind one central argument for hierarchy, and briefly review three potentially troubling implications of the hierarchical view. I close with a discussion of a promising possible solution to the most worrisome of the three objections.Kagan comments
One of the most striking developments in moral philosophy over the last half century has been the remarkable explosion in the discussion of animal ethics, that part of moral philosophy that deals with our moral obligations toward (nonhuman) animals. It would of course be an exaggeration, but only a mild one, to say that fifty years ago philosophical discussion of the treatment of animals was virtually nonexistent. The topic suffered from something close to complete neglect. On the rare occasion when a moral philosopher had something to say about animals, it was largely a matter of admitting—albeit only in passing—that it was wrong to be cruel to them, that the gratuitous infliction of pain was morally problematic. And then, for the most part, the matter was typically left at that.
Fifty years later the pendulum has swung the other way. Animal ethics is now a well entrenched subdiscipline within the field of moral philosophy as a whole. There is an ever growing cascade of books and articles devoted to the subject, a constant stream of journals and conferences. What’s more, it seems to me that a particular philosophical position within animal ethics has emerged as well.
I hesitate to say that it is the dominant view. I doubt if there is enough consensus in the philosophical literature on animal ethics to have much of anything substantive lay claim to a title like that. But it does seem to me that many theorists are drawn to some version of the view I have in mind.
Here’s the basic idea. According to this view, otherwise similar harms or benefits for people and animals count equally from the moral point of view. “Pain is pain,” as the point is sometimes put.1 In this sense, animals and people can be said to have the same moral status. To be sure, there are important differences between people and other animals, including differences in terms of which goods and which bads are likely to be at stake in any given case. These, in turn, can make it morally appropriate to treat people and animals differently. But that’s not because animals somehow count less than people do, from the moral point of view. On the contrary, similar goods (or similar bads) are to be treated the same, regardless of whose interests are at stake. That is to say, in and of itself it matters not at all whether we are talking about the interests of a person or the interests of an animal. Similar interests are to be given equal weight in our moral deliberation, regardless of whether we are dealing with a person or an animal. Strictly speaking, everyone has the same moral status.
For obvious reasons, it would be natural to call this position egalitarianism. It assigns the same weight to the interests of animals and of people. It gives the same moral status to both, considering neither group higher or lower than the other.
But for still other reasons, equally obvious, it would be potentially misleading to call the position in question egalitarianism, for the label is already in use as the name for views that hold that equality has moral significance in its own right (for example, that there is value in the equal distribution of welfare). Using the term “egalitarianism” for the first sort of view as well would only invite needless confusion. So we’ll need another name for the position I am trying to describe.
Accordingly, I propose to call the view in question unitarianism, since it holds that there is only one kind of moral status—a status shared by both people and animals. The name is far from ideal, I suppose, but I cannot think of a better one, and if nothing else it has the advantage that “unitarianism” is not already the name of any sort of prominent position in moral philosophy.
Unsurprisingly, unitarians differ from one another in all sorts of ways. For it is one thing to say that all of us—people and animals alike—have the same moral status. It is quite another thing to spell out what that status involves, just how it is that we are morally required to treat one another. Thus there can be, for example, unitarian utilitarians, instructing us to bring about the greatest balance of pleasure over pain. As unitarians, such utilitarians simply remind us to count the pleasures and pains of animals every bit as much as the pleasures and pains of people. And there can be unitarian deontologists as well, instructing us, say, to avoid harming the innocent (even if the results of harming them would be better overall). As unitarians, such deontologists remind us to avoid harming innocent animals, just as we are to avoid harming innocent people. In short, almost all of the sundry debates within normative ethics remain contentious and unresolved even if we embrace unitarianism. In and of itself, unitarianism doesn’t tell us how to treat people or animals; it only tells us that the same fundamental rights extend to all.
There is a lot to be said in favor of unitarianism. But one advantage should be apparent from the start. If we accept unitarianism then it is reasonably easy to see how to extend our moral theory so that it covers not only people but animals as well.
The truth, of course, is that in the past almost all of our moral theorizing has been limited to thinking about people. And while, as I have just observed, the debates in normative ethics are far from resolved, it does seem fair to say that for the most part what we have been working our way towards, by means of these debates, is a moral theory that would accurately tell us about the obligations that people have toward people. So even if you have such a normative theory worked out to your own satisfaction, strictly speaking you still face the question of how to extend or generalize that theory so that it covers animals as well. Unitarianism provides a simple and straightforward answer to that question: our interactions with animals are governed by the very same set of principles that govern our interactions with people (as spelled out by your favorite moral theory). Armed with a normative theory adequate for dealing with people, there is no further work to be done.
In contrast to the unitarian approach to animal ethics, it seems to me that common sense embraces, rather, a hierarchical approach, where animals count, but count in a lesser way. On this alternative view, people have a higher moral status than animals do. There are still restrictions on how we are to treat animals, but these are not the very same restrictions that govern our treatment of people. People have rights that animals lack, or have stronger rights, or perhaps a person’s interests count for more than (or count in different ways from) an animal’s.
Admittedly, one should probably hesitate before making confident assertions about common sense in this area. Some people apparently believe that animals don’t have any sort of moral standing at all; they are merely one more resource to be used as we see fit.
I suppose there is a sense in which a view like this—where animals lack moral standing altogether—could still be described as hierarchical, since people clearly have a higher status on this account than animals do. But similarly, there is a sense in which such a view could instead be called unitarian, since it holds that there is indeed only a single moral status (that had by people). But as I intend to use the terms, at any rate, neither label applies to those who simply deny the moral standing of animals. As I intend to use the terms, both unitarians and hierarchy theorists agree that animals do indeed count, morally speaking; animals have moral standing. Unitarians and hierarchy theorists differ only in terms of whether animals have the very same moral status as people or a lower one. Accordingly, if enough people believe that animals don’t count morally at all, then it would be a mistake to claim that common sense embraces a hierarchical approach.
I suspect that most people reject the extreme claim that only people count. What I take to be the common view, rather, is that animals do indeed count morally, but they simply do not count in the very same way that people do. Animals count for less.
Of course, here too, there remains tremendous room for disagreement. In addition to the familiar debates from normative ethics about the details of our obligations toward people, questions about the appropriate extension of our normative theory (so that it covers animals too) now become pressing and difficult. After all, it is one thing to say that animals count, but in a lesser way. It is quite another thing to spell out exactly how they count, what it really means to say they count in a lesser way. If the interests of animals are not to be counted in precisely the same fashion as the interests of people, how then are they to be counted? Although it does seem to me to be true that common sense accepts a hierarchical approach (or, at a minimum, it is true that a lot of people accept something like that idea), I don’t think there is anything close to a clear understanding of what the lesser standing of animals entails.
In my book, How to Count Animals, More or Less, I argue for a hierarchical approach to animal ethics. Given what I have just said, then, at best I can only partially claim the mantle of common sense. I do think that many readers will find my central thesis—that the right approach to animal ethics is a hierarchical one—to be fairly obvious, hardly worth arguing for. But at the same time, if I am right that there is nothing like a consensus about what the lower status of animals comes to, then I imagine that the various specifics that I discuss remain controversial.
Accordingly, at various places in the book I take some initial steps toward trying to develop a moral theory that is appropriately sensitive to differences in moral status. I explore, for example, what might be involved in extending some common distributive principles (such as egalitarianism, or a priority view) to animals, while taking into account the fact that animals count for less than people do, with some animals counting still less than others. Similarly, I ask what certain deontological principles or rights might look like—such as the right not to be harmed, or the right to self-defense—once we modify them so as to reflect the various differences in status that we find between people and animals, or among animals.
However, it is probably best to admit that in my book I don’t actually develop a detailed hierarchical theory. At best, I offer a sketch of what a theory like that might be like. In fact, truth be told, in many places—really, in most places—all I do is try to point out how desperately far we currently are from having an adequate moral theory when it comes to the treatment of animals. Unlike the unitarians, who think it a relatively trivial matter to extend moral theory to cover animals, I find myself thinking that we remain very much in the dark about how best to do that. I can only say how to count animals more or less.
I do however want to emphasize one further point. Although I defend a hierarchical approach to animal ethics, I do so with considerable misgivings, for I am afraid that some may come away thinking that my aim to is to defend an approach that would justify much or all of our current treatment of animals. After all, it seems reasonable to suggest that it is part of the commonly accepted view that our treatment of animals is, in the main (even if not in all specifics), morally acceptable; and I have already suggested that the common view is a hierarchical one. So in defending hierarchy, aren’t I defending—in broad strokes, at least, if not with regard to every detail—our current treatment of animals?
But nothing like this is remotely the case. Our treatment of animals is a moral horror of unspeakable proportions, staggering the imagination. Absolutely nothing that I say here is intended to offer any sort of justification for the myriad appalling and utterly unacceptable ways in which we mistreat, abuse, and torture animals.
In this regard the unitarians have an easier time of it. No one would be tempted for even a moment to suggest that we already treat animals in anything like the way that morality requires us to treat people. So unitarians are very well positioned to condemn current practices for the moral monstrosities that they are.
But that doesn’t make unitarianism the truth. On the contrary, it seems to me to be true both that animals count for less than people and yet, for all that, that they still count sufficiently that there is simply no justification whatsoever for anything close to current practices. It may be less straightforward to condemn our abuse of animals once one embraces a hierarchical view, but it is still important to do so.
Having said that, however, I should nonetheless warn the reader that the requisite arguments for the unjustifiability of our treatment of animals will not be found in my book. To work out those arguments with care one first needs to articulate in detail the appropriate hierarchical normative theory; and as I have already suggested, it seems clear to me that we are very far indeed from having anything like that. My book is intended as a contribution to the attempt to produce the relevant hierarchical theory. But the truth is, it throws out far more questions than it answers.